Electronic Device Search Rules Better Defined By US Customs

There’s a constant tug of war playing out on the national stage. On one side, privacy advocates are pushing for greater autonomy for end users, and hard limits to the types of searches that law enforcement agencies are allowed to conduct.

On the other side are the government agencies themselves, which often cite national security concerns as the justification for more and easier access to the sensitive data contained on personal devices like laptops and smartphones.

Generally speaking, the privacy advocates lose those battles. This was the case recently, when the CBP (the US Customs and Border Protection agency) published their latest electronic search guidelines. The most significant change is that the new guidelines explicitly define the difference between basic and advanced searches.

CBP agents are authorized to choose any travel, with or without cause or suspicion, for basic searches. Under the clarified rules, a basic search is limited to an examination of data found on the device itself, which is accessible through already installed apps, or through the device’s OS.

Advanced searches may be conducted, but agents must demonstrate that there’s a reasonable suspicion of criminal activity, or that the person carrying the device represents a “national security concern.”

The individual singled out for an advanced search may be permitted to be present while the search is conducted, but are not permitted to view the actual search itself for fear of revealing law enforcement techniques. Of significance, even during the conduct of an advanced search, agents are not permitted to search cloud-based data. They are restricted to data stored on the device itself.

While none of this sounds especially heavy-handed, the biggest complaint privacy advocates have about the updated rules is the fact that border agents can, at their own discretion, still carry out warrantless searches without any judicial oversight whatsoever.

Although this may not impact you directly, it pays to be mindful of the recent changes.